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Marks v. Whitney

Citation: 2 ELR 20049
No. No. S.F. 22566, 491 P.2d 374/3 ERC 1437/6 Cal. 3d 251, (Cal., 12/09/1971)

In a quiet title action, the owner of tidelands (i.e., lands lying between the mean high and low tide) under an 1874 patent from the state, sought a declaration that he had a right to fill and develop the tidelands, even though a portion of those lands were in front of the defendant's property facing the bay. The tidelands are subject to the public trust. The concept of the public trust includes navigation, commerce, fisheries and recreation, but it is also an elastic concept which can include new uses, such as preservation of lands in their natural state. Although the state may determine, through legislative action, that public trust uses should be modified or extinguished, in the absence of such a determination, the trust may not be violated by private actions.Moreover, any member of the public has standing to raise this issue. The defendant in this action has additional rights, since he is a littoral owner. The lower court's determination that the defendant's only right was a prescriptive easement for a wharf to the new shoreline was incorrect. A littoral owner has much wider rights, including the right of access from every part of his frontage. Judgment reversed and remanded.

Counsel for Plaintiff
Wallace S. Myers
Myers, Praetzel & Pierce
1108 Fifth Avenue
San Rafael, Calif. 94901

Counsel for Defendant
Albert M. Monaco
Heller, Ehrman, White & McAuliffe
44 Montgomery Street
San Francisco, Calif. 94104

Before Wright, C.J., Peters, Tobriner, Mosk, Burke, Sullivan and McComb, J.J.